The Rivers Law Firm is
a law firm representing those charged with DUI or driving under the
influence of alcohol or drugs. We represent, DUI Defendants in the City of Atlanta and its surrounding counties
including Fulton, Clayton, DeKalb, Henry, Fayette, Rockdale, Gwinnett,
Cherokee, Forsyth, Coweta, Cobb, Douglas and Spalding. We also
represent Defendants upon request outside of the Atlanta area through
out the State of Georgia.
The toughest DUI laws in Georgia History went into effect on July 1,
2001. These laws require jail time for all DUI convictions, license
suspensions, twelve months of reporting probation, and extensive
community service. Some DUI offenders will have all of their license
plates confiscated and be required to perform 30 days or 240 hours of
community service! In your DUI, you will face two courts: a criminal
court and a driver's license court. Further, if you do not request a
hearing with in ten business days, your license shall be suspended
thirty days after your arrest for as much as five years in some cases,
usually before you even go to court for your DUI.
Our firm has advised DUI clients primarily in Metro
Atlanta: including the City of Atlanta, Fulton, DeKalb, Cobb, Cherokee,
Forsyth, Henry, Clayton, Fayette, Rockdale, Spalding and Coweta
Counties. We know the Court system, the Judges, the Prosecutors and how
they work.
Georgia's Tough New DUI penalties make legal representation essential.
If you do not contact us, please contact another attorney. Do not go to
court unrepresented. If you can't afford to miss work for a year, you
can't afford not to hire a DUI attorney. We take all major credit cards
and have payment plans for qualified applicants. We are an established
law firm here to help you. We will not plead your case guilty unless
you tell us you do not want a trial. Call us at (678) 665-5977 for a
free consultation, email drivers@theriverslawfirm.com this email address is
or fax us a copy of your tickets or police report at (404) 529-4527.
Closing Argument Quotable
"I consider [trial by jury] as the only anchor ever yet imagined by
man, by which a government can be held to the principles of its
constitution." --Thomas Jefferson to Thomas Paine, 1789.
DUI Myths:
Myth: Driving at 0.08 is dangerous or a driver is impaired.
Fact: A University of Utah study found that drivers
talking on cell phones with and without earbuds were more dangerous
than drivers who had consumed enough alcohol to be in excess of the
0.08 legal blood alcohol limit for most states. See blog link
Strayer, D. Human Factors, Summer 2006; vol 48: pp 381-391. Insurance
Institute for Highway Safety: “DUI/DWI Laws.” News release, University
of Utah.
Myth: Mouthwash or breath spray will help you beat a DUI.
Fact: Mouthwash or breath spray is the worst thing you
can do when faced with a DUI. Both mouthwash and breathspray will
artificially inflate alcohol breath tests.
Myth: Sucking on pennies will fool a dui breath machine.
Fact: Pennies have no effect on alcohol breath test results.
Myth: “Alcohol on the breath” is a reliable sign of alcohol consumption and intoxication.
Fact: Alcohol is odorless. The smell of alcholic
beverages is not alcohol on the breath but is actually the odor of the
things in or ingredients of the alcoholic beverages. Non-alcoholic beer
like Odouls will produce the same smell the as drinking a regular beer.
Georgia law even recognizes that a mere odor of alcohol is not enough
to convict someone of DUI.
Myth: A Breath test will clear diabetics who exhibit
characteristics of alcohol impairment like slurred speech, confusion,
stumbling, sleepiness, uncoordinated behavior and red face cause them
to fail field sobriety tests.
Fact: Diabetics frequently have acetone in their breath, which Breath Test Machines can confuse with alcohol in the blood stream.
Myth: Field sobriety evaluations are validated by the
National Highway Transportation and Safety Administration, and
accurately identify drunk drivers.
Fact: The three standardized test the HGN(eye jerking
test), Walk and Turn and One Leg Stand are 77%, 65% AND 68% when
performed under ideal conditions with those under 65 years of age, with
no back, leg, knee, ankle or inner ear conditions on a flat, level,
dry, debris free surface in heels less than two inches. On the side of
a highway at night with strobe lights flashing sometimes in the
shivering cold, these conditions are rarely met. Further, Police
Officers rarely perform these test as they are trained. The results
are stupid people tricks as opposed to field sobriety evalutions.
Myth: Alcohol breath test machines are accurate.
Fact: There are many sources of error in breath tests.
Mouth alcohol, acetone, radio frequency interference, certain solvents
and chemicals, mouth wash, asthma inhalers which contain albuterol
suspended in ethanol or alcohol vapor. Even in the absence of any of
these common problems and under ideal conditions, alcohol breath
testers simply lack precision. The Georgia Intox. 5000 breath testing
manual states that breath testing has inherent sample variability of
0.01 for one sample and 0.02 for two samples.
This means that under ideal conditions, which is a highly unlikely
situation, a breath alcohol reading of .08 reflects an actual blood
alcohol reading of anywhere from .06 to .1. That is a margin of error
of 25 percent of the legal limit. At the under 21 level of .02 the
error rating is 100%!
Myth: A person accused of DUI by breath test is presumed innocent. A fact guaranteed by the both the and Georgia Constituion.
Fact: Although the presumption of innocence is
guaranteed by law, it is denied in fact with a state administered
breath test. The breath test is presumed accurate and you have to
prove it doesn’t work by hiring an expert to debunk the test or having
an extremely effective cross examination by an experienced DUI lawyer
using the Officer's own training materials.
Myth: Law enforcement officers can’t influence the BAC reading of a breath-testing machine.
Fact: Law enforcement officers can and do influence
BAC readings. The first part of lung air, after discarding the dead
space, has an alcohol concentration much lower than the equivalent
Blood Alcohol Content. Whereas, the last part of lung air has an
alcohol concentration that is much higher than the equivalent Blood
Alcohol Content. The last part of the breath can be over 50% above the
alcohol level. Thus, a breath test reading of 0.14% taken from the last
part of the breath may indicate that the blood level is only 0.09%."
Thus, police often yell at drivers “Blow, Blow, Blow, Blow” much longer
and deeper than is necessary for the machine to inflate the result.
Myth: Alcohol breath testers measure the concentration of alcohol in a person’s blood stream (blood alcohol concentration or BAC).
Fact: Alcohol breath machines don’t actually measure
blood alcohol content, which can only be achieved with a blood test.
They attempt to measure alcohol in the breath in order to estimate the
concentration of alcohol in the blood. As a result not all states
permit alcohol breath test. Alcohol breath machines detect any
chemical compounds that contain the methyl group in its molecular
structure. There are thousands of such compounds such as gasoline,
glue, acetone, asthma inhalers, paint, paint remover, “new car smell,”
celluloid, cleaning fluids, etc.
Breath Machines also assume as constants certain ratios within the
human body that actually vary widely from person to person and within
the same person over time. For example, many breath-testing machines
assume a 2,100-to-1 ratio in converting alcohol in the breath to
estimates of alcohol in the blood. However, this ratio varies from
1,900 to 2,400 among people and also within a person over time. Some
breath analysis machines assume a hematocrit (blood cells as a percent
of blood volume) of 47%. By comparison, Lance Armstrong may have a
hemocrit level of 47-49%, but anything over 50% is considering
blood doping and would result in a two year ban from professional
cycling llike the Tour de France or Tour de Georgia. However,
hematocrit values range from 42 to 49% in men and from 37 to 47% in
women. These machines appear to discriminate against female suspects.
These machines assume a body mass of an average male and do not account
for individuals with higher body fat. The machines assume an average
body temperature. Can you say junk science?
The New Track requires nine months active treatment followed by one
year aftercare and supervision. The Qualifying Criteria are as follows:
1) No more than 3 felonies convictions in 10 years
2) Maintained both employment and stable residence for 6 months prior to
drug arrest
3) No convictions past/pending charge(s) involving guns, violence, or
illegal drug sales
4) No outstanding arrest warrants in another jurisdiction
5) No less than 2 years left on probation if referring to Drug Court for
a probation violation charge
6) Defendant must acknowledge addiction to drugs/alcohol
7) Defendant must pay $35.00/week
8) Defendant must plead guilty. Upon successful completion of the
program, the charges are dismissed and/or probation is terminated.
The Screening/Assessment takes approximately 7-14 days. Generally,
Drug Court is an alternative to a drug felony conviction and/or jail
time. Referrals may be forwarded to Drug Court at 404-371-2293.
In Holowiak v. State,
A08A1872, the Court of Appeals refused to address the Intox 5000 source
code in an appeal from the State Court of Cherokee County in Canton,
Georgia. Mr. Holowiak, who was stopped at a roadblock in Cherokee
County, challenged the "propriety of the roadblock and test results
from the Intoxilyzer 5000 machine that used his breath to measure his
BAC." The Court held a hearing on Holowiak's motion to suppress and
produce [the Intoxilzyer 5000 computer source code]. The motions were
denied by the trial court in Cherokee County State Court. An
interlocatory appeal was granted. Holowiak enumerated as error the
Cherokee County Trial Court's failure to find that the computer source
code for the Intoxilyzer 5000 machine used to test Holowiak's BAC was
"necessary, material and relevant," so that Holowiak could procure this
evidence by means of a subpoena. Holowiak filed a Petition for
Certification of Materiality of Testimony from an Out of State Witness
four months before the hearing in the Canton, Georgia Trial Court.
The Court of Appeals found that Holowiak had not reserved the issue for
appeal because he did not bring the issue up at the Trial Court level
in Cherokee County. The Court of Appeals split hairs on the issue that
the Petition filed was for relevance and materiality of the out of
state witness who was to testify on the source code and the relevance
and materiality of the source code itself was not requested.
Therefore, the Court of Appeals refused to rule on the issue of the
relevance of the source code. This issue remains unresolved.
The Court of Appeals then curiously commented that Holowiak did not
raise the issue of the Cherokee County State Court's ruling that source
code was not a scientific report, but "even if he had" Holowiak did not
carry his prima facie burden (when did criminal defendants get a burden
to prove anything except affirmative defenses?) that the State
possessed or controlled the Intoxilyzer 5000 Source Code so he would
have lost anyway.
This ruling is curious in three respects.
1) Why would Holowiak appeal a ruling of the trial court he believed was correct?
2) Source Code is clearly not a scientific report under O.C.G.A. 17-[1]6-23. O.C.G.A. 17-16-23 provides in pertinent part,
(a) As used in this Code section, the
term “written scientific reports” includes, but is not limited to,
reports from the Division of Forensic Sciences of the Georgia Bureau of
Investigation; an autopsy report by the coroner of a county or by a
private pathologist; blood alcohol test results done by a law
enforcement agency or a private physician; and similar types of reports
that would be used as scientific evidence by the prosecution in its
case-in-chief or in rebuttal against the defendant.
Clearly, source code does not fall into
any of these categories. If the source code is not a scientific report,
it does not matter if the source code is in the possession or control
of the prosecutor because the "full information" provisions of OCGA
40-6-392(a)(4) do not require "possession or control" and are outside
and separate from the discovery statutes.
3) If they are scientific reports, then possession and control does not end the inquiry. O.C.G.A. 17-16-23(c) provides, "If the scientific report is in the possession of or available
to the prosecuting attorney" they must be provided within 10 days of
trial. CMI of Kentucky, Inc. which manufactures the Intoxilzyer 5000
has made judicial admissions in sworn and verified legal filings that, "CMI
further affirmatively asserts and alleges that in or about September
2007, CMI voluntarily changed its policy regarding the availability and
has thereafter offered to produce the source code in response to a
valid court order, subject to an appropriate Non-Disclosure Agreement
and Protective Order that will protect CMI’s valuable proprietary trade
secrets. State of Minnesota et al v. CMI of Kentucky,
Para. 21, Case No. 08-cv-603, United States District Court, District of
Minnesota, April 9, 2008. Obtaining the source code with a simple
Non-Disclosure Agreement is "available."
This is curious. These issue are far from resolved.
